JAGAN NATH Vs. GIRDHARI LAL

JUDGEMENT

(1.) THIS civil first appeal is directed against the judgment and decree dated 25th April, 1969 of the learned Sub -Judge, (A.D.M.) Jammu, dismissing the plaintiffs -appellants suit for pre -emption of a vacant site situate in Chowgan Fattu, Jammu.

(2.) THE facts relevant for the purpose of this appeal are: Th. Bisham Singh, defendant -respondent No. 2 sold the suit property in favour of Shri Girdhari Lal, defendant -respondent No. 1 by virtue of sale deed dated 8th March, 1963 for an ostensible sale consideration of Rs. 4,500. The plaintiffs -appellants thereupon brought a suit on 28th November, 1963, for possession of the property claiming that they had a right of prior purchase in respect thereof in preference to defendant -respondent No. 1, as (1) three chimney holes of their house which was dominant heritage opened on the suit property which was servient heritage, (2) the western wall of their house being joint with the suit property, they were co -sharers of the property, and (3) their house was contiguous to the suit property.

(3.) THE suit was resisted by respondent No. 1 inter alia on the ground that the suit property which had a "Chappar" on it at the time of the sale was used as a shop, that he wanted to demolish the "Chappar" and construct a new shop thereon when the appellants forestalled him by bringing the suit and that the sale of the suit property was exempt from pre -emption. It was further pleaded by the defendant that though the chimney holes opened towards the suit property they had been constructed recently.